Trip to the DOJ

The Bertha Foundation supports ArchCity Defenders‘ senior lawyer, Thomas Harvey. ArchCity Defenders is a non-profit that strives to prevent and end homelessness among the indigent and working poor in the St. Louis Region by providing holistic legal representation, advocating for policy change, and by bringing impact litigation designed to combat the systemic problems in the justice system.

A few months ago, I had the opportunity to participate in a two-day convening at the Department of Justice (DOJ) and the White House to discuss illegal fees, fines, and the cumulative disadvantage these immoral and unethical practices have on poor people and communities of color. The room was filled with experts from around the country and included various representatives from the DOJ, the America Civil Liberties Union (ACLU), prosecutors, judges, and non-profits like Equal Justice Under Law, ArchCity Defenders, and the Justice Institute. The DOJ framed the first day as a discussion that built on their Ferguson report, which revealed the systemic abuses in Ferguson’s municipal courts and police. On that first day, there was no mention of the murder of Mike Brown, i.e., the entire reason the DOJ set foot in Ferguson to begin with. Instead, we were left with the impression that the DOJ had been roaming the land investigating systemic abuses of low-level courts where there are no defense lawyers and part-time judges and prosecutors ignore the basic constitutional principles laid out in Bearden v. Georgia and Pugh v. Rainwater. Setting aside the fact that ArchCity Defenders published a paper on these same abuses 8 months before the DOJ wrote their report, I want to write about how dangerous it is for us to accept, and for the DOJ to further, the notion that change comes from the top-down.

This idea mischaracterizes changes in St. Louis courts as coming from governors, senators, judges and the DOJ, and reinforces the dangerous notion that change comes from only these powerful institutions. As should be clear, change comes from the people, not these institutions. Faith leaders, social workers, and the St. Louis National Association for the Advancement of Colored People (NAACP) called for reform years before Mike Brown was killed. Protesters and organizers like the Organization for Black Struggle and Missourians Organizing for Reform and Empowerment echoed that call. Saint Louis University School of Law and ArchCity Defenders formally requested that Ferguson adopt reforms in September of 2014. Conversely, the DOJ, Senator Schmitt, and Governor Nixon didn’t know or didn’t care that municipal courts and for-profit policing destroyed the lives of poor people and Black people. Simply asking people impacted by these systems on a daily basis will always get you closer to the truth: the people and the local groups working with them always lead the way to change, not governors, senators, judges or the DOJ.

The DOJ finds itself in a difficult spot. Criticized by those who believe that their presence in Ferguson was politically motivated, they want to pivot to an issue everyone can agree on: poor people shouldn’t be jailed because of their poverty. However, in failing to connect the killing of Mike Brown by Darren Wilson to the unlawful practices of these courts and police in the broader region, the DOJ missed the opportunity to make long-lasting change. This is not just an issue of economic inefficiency. Yes, it costs money to lock people up and yes, it’s ridiculous to lock poor people up if your real goal is to extract a payment from them to fund your town. But it is wrong to assume that appealing to the logic of capitalism will fix this problem. Individual and systemic racism is a fundamental piece of this unconstitutional, illegal, and immoral system. Until we address the role race plays in these systems, we will never reach a solution that brings about transformative change either in St. Louis County or the nation.

Even if the DOJ chose to address the problem through the lens of race, we can’t rely on the DOJ to fix the problem. If the US government approached the killing of Black men and women by police, mass incarceration, and the unconstitutional imposition of excessive bond, fees, and fines like the emergency it is, the DOJ would be staffed adequately and there would be teams of lawyers stationed in every city in America. Instead, the DOJ’s Civil Rights and Access to Justice divisions are woefully understaffed and underfunded. If the problem that leads to the incarceration of 12 million people a year in local jails and 1000 shootings by police were treated as an emergency, we wouldn’t have to wait for yet another tragic but completely foreseeable killing for them to investigate.

Until then, communities must continue to organize and lawyers committed to movements must continue to follow their lead in finding meaningful solutions in and out of the legal system. That’s why we fight.